Rex v Interwork Ltd - [2010] SAEOT 2

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
REX v INTERWORK LTD
[2010] SAEOT 2
Judgment of Her Honour Judge Cole
27 July 2010
ADMINISTRATIVE LAW
Non-lawyer seeking to represent a party pursuant to s 24(4) of the Equal Opportunity Act - whether leave is required - advocate's application for leave to represent refused.
Equal Opportunity Act 1984; Fair Work Act 1994; Fair Work Act 2009 (C'wlth); Legal Practitioners Act 1981; Magistrates Court Act 1991, referred to.
Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340; Damjanovic v Maley (2002) 55 NSWLR 149, considered.

REX v INTERWORK LTD
[2010] SAEOT 2

This is a decision in relation to an interlocutory application. Mr Andrew Knox has sought leave pursuant to s 24(4)(b) of the Equal Opportunity Act 1984 to represent Ms Patricia Rex in her complaint against Interwork Limited (“Interwork”) before this Tribunal. Mr Knox is not a legal practitioner. He is a registered agent pursuant to the Fair Work Act 1994. Ms Charlesworth, counsel for Interwork, opposed the application.
The Equal Opportunity Act 1984 provides, in s 24(4):
A person appearing in proceedings before the Tribunal –
(a) is entitled to appear personally or by counsel; or
(b) may, by leave of the Tribunal, be represented by an officer or employee of a registered industrial association or by any other person.
At the hearing of the interlocutory application, Mr Knox first asserted that he was “counsel”, and therefore entitled to appear pursuant to s 24(4). I reject this submission. Taking into account the ordinary meaning of the word, together with its context, “counsel” in s 24(4) of the Equal Opportunity Act means a legal practitioner who has a right of appearance in the State of South Australia. Mr Knox requires the leave of the Tribunal to appear in this matter.
The Legal Practitioners Act 1981 provides, relevantly:
S 21(1)A person must not practise the profession of the law, or hold himself or herself out, or permit another to hold him or her out, as being entitled to practise the profession of the law unless –
(a)in the case of a natural person, the person –
(i)is a local legal practitioner; or
(ii)is an interstate legal practitioner; or
(b)in the case of a company, it holds a practising certificate issued and in force under this Act.
…
(2)    Without limiting the generality of subsection (1), but subject to subsections (3) and (3a), a person practises the profession of the law, if acting for fee or reward on behalf of some other person he or she –
(a)…
…
(e)represents any party to proceedings in a court or tribunal.
(3)     This section does not prevent –
(a)…
…
(g)an unqualified person from representing a party to proceedings in a court or tribunal for fee or reward, if the person is authorised by or under the Act by which the court or tribunal is constituted, or any other Act, to do so;…
…
(4)     For the purposes of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rex v Interwork Ltd

Details

AGLC: Rex v Interwork Ltd [2010] SAEOT 2
Case: [2010] SAEOT 2
Decision Date: 27 July 2010

CaseChat Overview and Summary

In this case, Mr Andrew Knox, who is not a legal practitioner but is a registered agent under the Fair Work Act 1994, sought leave to represent Ms Patricia Rex in her complaint against Interwork Limited before the Equal Opportunity Tribunal. Ms Charlesworth, counsel for Interwork, opposed the application on the basis that Mr Knox did not meet the criteria set out in the Equal Opportunity Act 1984. The legal issues the court was required to decide were whether Mr Knox was entitled to represent Ms Rex without the leave of the Tribunal and whether the charging of a fee by a non-lawyer representing a party in the Equal Opportunity Tribunal was permitted.

The court rejected Mr Knox's submissions that he was "counsel" and did not require leave to appear for Ms Rex before the Tribunal. The court held that "counsel" in s 24(4) of the Equal Opportunity Act meant a legal practitioner who has a right of appearance in the State of South Australia. The court also held that Mr Knox's status as a registered agent under the Fair Work Act 1994 did not give him a right of appearance in the Equal Opportunity Tribunal. The court further held that the Equal Opportunity Act 1984 provided for a person in Mr Knox's position to seek the leave of the Tribunal to appear and that there was no provision in the Equal Opportunity Act 1984 for such a person to charge a fee. The charging of a fee by such a person would constitute an offence pursuant to s 21(1) of the Legal Practitioners Act 1981.

The court took into account all of the factors in Giancaspro as they applied to this matter and held that the balance was very much in favour of refusing Mr Knox's application. The court granted Ms Charlesworth's application for costs in relation to this interlocutory application.

The final orders of the court were that Mr Knox's application pursuant to s 24(4) of the Equal Opportunity Act 1984 for leave to represent Ms Rex was refused and that Ms Charlesworth's application for costs in relation to this interlocutory application was granted.

Orders